Posted by: Patricia Salkin | June 13, 2012

NY Attorney General Opines that City Charter Provision Governing Terms of Office for Zoning Board Members and Date of Term Commencement is Not Preempted by State Statute

The City of Peekskill, NY requested an opinion of the Attorney General regarding the prevailing governing law, the City charter (charter) or the General City Law (GCL), with respect to the terms of office of appointed members of the City’s zoning board of appeals (ZBA), and also the date which their terms commence.

The OAG looked at the differences in the provisions between the two: the number of members; and the terms of years and vacancies. The GCL allows for 3 or 5 members on the ZBA, with each member given 3 or 5 year terms respectively. The city charter, on the other hand, allows for 7 members on the ZBA with 3 year terms each.  Furthermore, vacancies are filled differently, the GCL allows for only “the unexpired portion of the term,” whereas the charter allows a full 3 year term for vacancies. The OAG noted that traditionally the City has followed the charter in all of these respects.

The question then arises whether the charter has been superseded by the state statute. The OAG begins by referring to Article IX of the New York Constitution and the Municipal Home Rule Law § 10 which “grant to local governments the power to adopt and amend local laws relating to a local government’s ‘property, affairs or government,’ or addressing certain enumerated subjects, including terms of office or its officers, so long as the local laws are consistent with the Constitution and the general laws of the State.” However, if the Legislature makes a special law, that “relates to a state concern” or with the “intent to preempt the field,” the local law will be superseded.  Here, the charter does not conflict with a general state law and there is nothing to suggest that the Legislature wanted to preempt the field, therefore, the charter has not been superseded and the charter governs.

NY AG Informal Opinion No. 2012-2 (01/13/2012)

The opinion can be accessed at: http://www.ag.ny.gov/sites/default/files/opinion/2012-2%20pw.pdf


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